EEOC’s “plans” or points of emphasis for 2012

As you know, the EEOC enforces several of the federal laws related to discrimination.  Those laws apply to employers with 15 or more employees.

1. Reasonable Accommodation under the ADA.  The EEOC’s view is that employers are missing the boat regarding what their obligation is and what is and is not an undue hardship.  In our experience, many employers have trouble with these concepts and often guess wrong.  Not to sound like a commercial, these are issues with which  employers and some lawyers need assistance before there is a problem.  We have someone here who lives in the world of ADA and FMLA and knows her stuff.  You may recall from our presentation that ADA claims are on the rise and the failure to accommodate is the theory for many of these claims.

1. Disparate Impact. The EEOC sees this as a primary focus of its mission.  Disparate impact discrimination occurs when an employer has a policy or practice that on its face looks or is neutral to all employees or applicants but in practice has the unintended affect of disadvantaging a certain group. The most famous case involved an employer that required all applicants to take a test.  A bad score disqualified the candidate.  The problem for the employer was that the test had absolutely nothing to do with the job  and it screened out minorities at a much higher rate than whites.  Criminal background check policies, which is a specific focus of the EEOC, are a good example of a policy that could have a disparate impact.  Since studies show that minorities have a higher percentage of arrests and convictions than whites,  a policy that screens out all applicants with arrests or convictions without regard to the crime or relationship to the job negatively impacts minorities.  If you have a policy on arrests and convictions, you should take a look at it.

1. Unemployed. The EEOC is  looking to further its agenda of protecting the “unemployed” even though being unemployed is not a protected class  under federal law.   The EEOC would rely on a disparate impact theory based on the premise that more minorities are in the ranks of the unemployed.

1. Criminal Background Checks. See number 2 above.   The EEOC’s official guidance on an employer’s  use of arrest  or conviction information in making employment decisions is 10 or more years old.  The  EEOC is set to review and revise its  guidance on this issue.

1. Credit Checks. This is another hot button.  EEOC believes that disqualifying applicants based on credit history also may create disparate impact discrimination based on the groups of persons likely to be negatively affected by such a policy.    See No. 2 above.

1. Veterans. Another area where the EEOC is looking for disparate impact discrimination.   EEOC is looking for policies that disqualify applicants from employment for anything other than an honorable discharge (e.g., a BCD) as possibly  having a disparate impact on minorities – primarily African American males.

1. High School Diploma Requirement. Still another area for the disparate impact analysis. The EEOC believes that a blanket policy of requiring a high school diploma potentially may have a disparate impact on minorities and/or those with learning disabilities.   If you have such a requirement, you may want to consider why you have such a policy.  If you cannot show that having a diploma is related to the job duties to be performed, your policy could be subject to challenge.  For example, if you were hiring window washers, it may be difficult to show how having a diploma relates to that job.

1. Care Givers. While not directly a protected class, the EEOC is looking at ways to protect them under the ADA, pregnancy, etc.   Just recently, the EEOC discussed its aim to enforce the  pregnancy discrimination laws, noting that the number of such claims are trending upward.   The good news is that except for the rights granted to pregnant employees who are eligible for FMLA protection and where the pregnancy may create an ADA situation  due to complications,  pregnant employees have no greater rights than other employees.  Pregnancy standing alone is not a disability  and the pregnancy discrimination laws don’t require employers to grant preferential treatment to pregnant employees or to accommodate pregnancy-related limitations.   On the flip side, the pregnancy law prohibits employers from treating employees differently because they are pregnant.   Generally speaking,  if an employer allows non-pregnant employees to miss work or not perform up to standards, it cannot hold  the pregnant employee to a different standard.   Perhaps the most common mistake employers make in this regard is making assumptions about pregnant employees and then acting on those assumptions.   Always a good idea to know where the lines are before making a comment or taking an action.

1. Equal Pay Claims / Issues. Another hot button issue for the EEOC.

1. Leave Policies. Maybe close to the top of the hot button list.   Some EEOC offices have taken the position that if an employer’s leave policy that does not specifically mention the ADA, that the policy violates the ADA.  The EEOC also takes the position that an employer’s leave policy that has a hard cap on the amount of leave an employee can take (excluding FMLA leave) violates the ADA.  The theory is that leave may be a reasonable accommodation under the ADA and the reasonableness of the leave is determined on a case by case basis.   Therefore, a policy capping leave does not consider the reasonableness issue for a particular situation.     The EEOC is looking for such policies and if it finds them, it may pursue a systemic claim.   Fortunately, we can draft language that sets a soft cap with caveats for  individual situations.